This rebuttal comment to I’ll Trade You Cuccinelli For Splattergate With A Player To Be Named Later was so well written, and so extensive, I felt that it deserves the honor of a guest post status.
– Anthony
Guest Post by Thomas Fuller
But it didn’t rise to a criminal level (that was the UK deleting emails in advance of Freedom of Information requests, not Michael Mann). What Ken Cuccinelli is doing is going fishing for wrongdoing without an allegation of such wrongdoing–and that’s not how we should be doing things in this country.
I’ll get a lot of flack from you on this–and don’t be shy, I can take it. But remember as you write–District Attorneys are not always Republican, and controversial scientists can be skeptics at times, too. Don’t let your desire for a short term victory in the daily news cycle let you ignore what would be an erosion of all our civil liberties, I beg of you.
Let’s begin by examining the validity of your statement, “But it didn’t rise to a criminal level (that was the UK deleting emails in advance of Freedom of Information requests, not Michael Mann). What Ken Cuccinelli is doing is going fishing for wrongdoing without an allegation of such wrongdoing–and that’s not how we should be doing things in this country.” On the contrary, there are outstanding allegations of wrongdoing.
Michael Mann and the University of Virginia refused to comply with the law and a citizen’s lawful FOIA (Freedom of Information Act) request for e-mail held by the University, claiming the e-mail no longer existed. When Virginia Attorney General Cuccinelli served a subpoena on the University to deliver the e-mail, the supposedly deleted and non-existent e-mail was recovered from the University computer servers. Consequently, it appears there is every reason to suspect a crime was committed when the citizen’s FOIA request was denied on the basis of a fraudulent claim of destruction of the e-mail. Unlike the case with the University of East Anglia, the statute of Limiitations is likely to remain in force in the Virginia case. It remains to be determined whether or not the evidentiary discovery will support misdemeanor and/or felony charges. That is the purpose and due process of law for which the CID is needed and proper.
Then there is the issue of the $466,000 (nearly a half million dollars) in grant monies Michael Mann solicited and received from the State of Virginia and its taxpayers, in addition to the huge sums of money he and the University of Virginia received from the U.S. Government. It has been argued by a group of scientists and others that Michael Mann and the University of Virginia should somehow be uniquely immune from a Civil Investigative Demand (CID) in a prima facie FOIA and/or fraud criminal case on the basis of some unwritten gentleman’s agreement to avoid interference with the intellectual freedom of scientists. Thusly, these same people see no cognitive dissonance, hypocrisy, or injustice when they punished, sanctioned, threatened, intimidated, and/or defrauded non-scientists and dissenting scientists by dismissing state climatologists, dissenting climate scientists, dissenting meteorologists, academics, students, political appointees, and others without any Civil Investigative Demand, administrative board hearing, arraignment and trial, or other due process of law thay are now claiming for Michael Mann and the University of Virginia without any statutory or constitutional right.
Rubbing salt into the wounds of the public they have wronged for many years, they are trying to carve out a privileged position of immunity for themselves just as the Members of Congress have done so before them. Discriminating against other classes of citizens, these so-called scientists want to enjoy an immunity from investigation and prosecution not enjoyed by other citizens in our society. Expressing outrage that anyone would seek to interfere with the privacy of their communications and right to publish their communications while remaining immune from due process of law, members of their class of citizens have been running rampant in innumerable criminal cases of defrauding governments, businesses, private citizens, and causing the deaths of private citizens.
For one example, Dr. Scott Reuben pled guilty to numerous charges of fraud in which he faked numerous medical studies published in medical journals as peer reviewed research for such companies as Pfizer. Despite the peer reviews, Dr. Reuben didn’t even have any patients enrolled in his faked patient studies. Physicians relied upon these faked perr reviewed papers to provide medical care to their patients. It was subsequently determined that Dr. Scott Reuben had been faking a number of medical studies for some thirteen years without being discovered and prosecuted.
Somewhere there is someone reading the forgoing and saying Dr. Reuben is just an isolated case, and his fraud is not representative of any widespread scientific fraud. Unfortunately, they are just plain wrong and ignorant of the facts.
Take for another example, the problem with widespread fraud due to ghostwritten peer reviewed science papers. Acta Crystallographica Section E was compelled to retract more than 70 peer reviewed papers ghostwritten by Chinese scientists as faked or fraudulent studies. Pharmaceutical companies have a reputation for ghostwriting peer reviewed studies in-house and then paying medical doctors and scientists to permit their name to b used for publication of the studies. This fraudulent practice has been reported to be widespread in the pharmaceutical industry and some academia for many years as an outgrowth of the academic practice of using graduate students to perform service for their superiors holding doctorates. The University of Alabama at Birmingham has been yet another academic institution which had to retract a number of fraudulent peer reviewed papers and remove eleven proteins registered in a database of such proteins used in science.
The fallout from the notoriously fraudulent stem cell research of Hwang Woo-suk and the investigation of his associate, Professor Gerald P. Schatten of University of Pittsburgh have been ongoing.
Closer to NASA there is the case of Samim Anghaie, his wife, and their business, NETECH, which fraudulently obtained 2.5 million dollars in contracts from NASA among the 13 U.S. government contracts totalling 3.4 million dollars.
Within climate science there has been a number of incidents of suspected fraud, one of which was reported by Dr. S. Fred Singer described the allegations of either fabrication of Chinese weather station data or plagiarism by Wei-Chyung Wang, University of Albany, from work by his colleague in China, Zhaomei Zeng.
Suffice it to observe, scientific fraud is not at all uncommon, and some commentators describe scientific fraud as being rampant. Looking at the known incidents of scientific fraud, it can be seen the perpetration of such fraud is highly rewarding with grants and contracts amounting in various examples as $70,000, $466,000, and $3,400,000. Whistleblowers are typically punished for their honesty, resulting in great reluctance to disclose such scientific fraud or enthusiastic cooperation with such fraud.
In your statement, “But remember as you write–District Attorneys are not always Republican, and controversial scientists can be skeptics at times, too,” you indulge in a fallacy seemingly common to many so-called Liberal-Left Democrats. You see opponents as necessarily being some kind of badly fundamental religious Right-wing extremist or at least some misguided minority Right-wing-nut Republican. Well, such ideas are extremist fantasies. There ae a great many people who describe themselves, as Republicans, yes, but also Democrats, Libertarians, independents, and others who insist upon honesty, integrity, and impartiality. A great many of these people cheerfully wish a pox on all politicians, activists, and Lamestream journalists who seek to frustrate the ability of ordinary citizens to govern their own lives free of interference by by people who think they know better what is best for other people besides themselves and seek to make themselves immune from the same rules and burdens they would impose on others. Whether it is the special immunities and privileges the MainStream Media (MSM) seek to deny ordinary citizen journalists or the climate data and information climate scientists attempt to deny ordinary citizen observers of climate science, you don’t have to be a Republican, a political conservative, or a right-wing-nut, to join with our political opponents in demanding non-discriminatory application of the due process of law to scientists the same as other citizens and professions.
At the very least, the University of Virginia and/or Michael Mann appear to be liable to investigation and prosecution for the violation of laws relating to the FOIA release of the e-mail evidencing Michael Mann’s involvement in the handling of $466,000 of state grant funds. There is more than ample evidence that scientific fraud is a common enough crime to warrant investigations, and convincing evidence of at least some violations of law with respect to FOIA disclosures. Scientists are not yet privileged with the immunity needed to commit FOIA violations and scientific fraud with complete immunity from investigation and prosecution. let the Attorney General represent the citizens of Virginia and safeguard their taxpayer monies and their right to the freedom of information guaranteed by written laws.
—————
sharper00,
Thank you for your comment.
Still, a legally constituted body of the state of Virgina is pursuing a legal process within the body of the legal structure of the state of Virginia. Who will persist and prevail is in the pale of the process of law. I do not know the outcome, nor do critics of the process.
The legal process that is the basis of my society is legally progressing under the full pervue of the the United States of America in public. I have absolutely no problem. The process will yield a result within the legal system. Who could fear that?
Who could fear that?
I say that anyone who fears that has issue with the legal process of the USA , not with Mann, UoV or the State of Virginia. Do you want to go to challenge the basis of US law? Over what? Over a specific questionable climate science issue?
John
sharper00 says on October 8, 2010 at 3:21 pm
It us my understanding that a valid FOIA request was made for the correspondence which the university denied on the basis that they had been deleted, and that this was subsequently found to be incorrect (the emails were still available).
There does seem to be relevant questions for the university to answer, in that case.
Gentlemen
In my view, Mr. Patterson’s points are well taken and well supported by the State of Virginia’s Office of Attorney General’s (OAG) brief . For a copy of the brief see: http://vaquitamlaw.com/files/116785-109034/AG_Mann_file_July_13.pdf
As former a project manager for a federal national laboratory who has managed millions in public research funds (including co-managing projects with up to a half-dozen principal investigators at a time), I am acutely aware that all of our agency’s employees have a public responsibly to ensure no fraud occurred in our requests for funding or the in execution of our projects. It does not matter it the funding source is an inter-agency agreement, grant, or congressional appropriation. Nor does is matter if we have sub-contracted tasks to a state university or private lab.
Moreover, as one who currently recommends expenditures for my agency’s research grants (including active CO2 related research grants), it is my responsibility to ensure no fraud occurs and to investigate and report even the appearance of fraud. Therefore I cannot and do not accept Mr. Mosher’s points above.
Indeed, only this morning, I was consulted on an issue related to federal law that prohibits the agency from engaging in any act “to deceive any director, officer, or employee” of the agency or “make any false report or statement” for the agency – upon penalty of imprisonment and/or fine. And further that we are subject to “all general penal statues relating to the larceny, embezzlement, conversion, or to the improper handling, retention, use or disposal of public moneys or the property of the United States”. The purpose of this morning’s consultation was to eliminate the appearance of impropriety.
In my view, the State of Virginia’s Office of Attorney General’s (OAG) is acting properly and his concerns are legitimate. For example, let us look at the Freedom of Information Act (FOIA) request. On page 19 of the OAG brief, the Attorney General points out the University of Virginia did not do a proper search for its servers for the Freedom of Information Act (FOIA) information requested. Indeed the University requested an extension to respond to the OAG information request so it could search a server that was not searched during the FOIA request. See where the brief states
“The University’s then counsel indicated that an e-mail server with potentially responsive documents that had not been searched in response to the FOIA request had been located and secured. Based, in part, on that representation, the extension was granted.”
Shorty after the University of Virginia requested the extension the University abruptly changed attorneys and filed its Petition to block the OAG’s investigation. Under the circumstances, a reasonable person could conclude the University found damaging information in the previously unsearched server. Perhaps information showing it failed to properly response to an FOIA request and/or information supporting possible fraud charges. The mere fact the University felt compelled to switch attorneys gives one pause.
Mr. Patterson’s point that the academic community does not enjoy special immunities – even when “cleared” by investigate thru University panels and other outside parties – is well taken and well support by federal case law. For a good example, see United States v. University of Pittsburgh, 192 F.3d 402, 405 (3rd Cir. 1999). Where investigatory actions under the federal False Claims Act for allegedly making false claims to the NIH under federal research grants were allowed to proceed despite investigations conducted by the University of Pittsburgh and NIH determining that no material misconduct had occurred. (See page 21 of the Virginia OAG’s brief.)
Even “the University [of Virginia] concedes that the federal False Claims Act (including the law of administrative subpoenas) is an appropriate analogue for reviewing CIDs under the States FATA.” (See the University’s Brief p.10, n. 8 and page 18 of the OGA brief).
Additional discussion on the merits and limitations of an “Academic Freedom Shield” are thoroughly discussed beginning in the OAG’s brief on page 35-36. The relevant point being that “Academic Freedom” arguments apply only to First Amendment speech issues and “offers no protection for things that fall outside of the protections of the First Amendment – such as fraud and fraud investigations” or “prevent the Attorney General from investigating potential fraud in applications for and the performance of government funded research grants”.
The Attorney General rightly points out that in Urofsky, 216 F3d at 412 n12. The court firmly stated university faculty members do not have First Amendment rights that “normal” citizens do not. The Court noted:
“that the argument raises the specter of a constitutional right enjoyed by only a limited class of citizens. Indeed, the audacity of Appellees’ claim is revealed by it potential impact in this litigation.” … “Such a result is manifestly at odds with a constitutional system premised on equality”
The idea that the academic community is entitled to First Amendment rights not reserved for all Americans is repugnant at its very core and a violation of the principal of “equality before the law”. Therefore, I would suggest Mr. Patterson’s eloquently made point is well supported by law and tradition.
The Attorney General has also made it clear that “It is irrelevant under the FATA what the original source of the funds may have been [i.e. State or Federal grants] so long as any portion of the funds was paid out by the Commonwealth in response to the claim.” In other words; the University is part of the Commonwealth of Virginia; hence any funds flowing though it, or disbursed by it, to individual grant recipients are “funds paid out by the Commonwealth”. (OAG Brief page 28)
It is inconceivable that any State’s Attorney General could be prevented from conducting an investigation of potential fiscal impropriety while dispersing funds granted to a State, being administered by State officials, using State facilities and resources, and utilizing State employees. Dr. Mann himself is alleged to have identified the grants in question as “U.Va. award”, U.Va. Subcontract”, and/or “U.Va. internal award”. (OAG brief page 28; see also supporting details on page 29) So, it is difficult to conceive of any rational argument as to why the Attorney General’s investigation should not be allowed proceed.
Furthermore, as a federal officer, I would not distribute federal funds to a State institution which can claim immunity to investigation by the states’ own Attorney General. For if the State is incapable of insuring the integrity of its own processes, then I would not be engaging in due diligence with respect to those federal funds entrusted to me.
With regard to Mr. S. Mosher’s point that Dr. Mann may have merely been a co-author in some studies (i.e., was not a principal investigator) and therefore was not responsible for the disbursal of “money” now being obtained. It is illrelevent with respect to a fraud investigation. Generally, fraud occurs when one knowing uses deception to obtain funds or assists to further the purpose of obtaining funds thru deception. If a researcher obtains funds, as a co-author, as the result of fraud occurring at an earlier date then the fraud remains an active crime.
Therefore I say, Bravo Mr. Patterson.
You have distilled important practical, ethical, legal, and constitutional principles into a practical guide for ensuing public accountability – with a simple and elegant style. I stand in firm admiration and agree whole heartily.
Kforestcat
sharper00 October 8, 2010 at 3:41 pm:
“Well again this is not abstract problem. This is legal action specifically targeting Mann. If this is allowable then every scientist publishing a paper has to decide if they potentially want to “go with the legal process” investigating them for fraud possibly years later.”
I think you are confusing making a mistake with fraud. No doubt you are aware that there have been examples of scientific fraud, so you must recognise it does happen. If you or your loved ones suffered as a consequence of, say, fraudulent claims in medical research I imagine you would not have a problem with legal process offering you some recourse? This is not the same as a scientist either making an error or, as science progresses, having their work disproven. I agree to be on the end of unjustified litigation is no fun, but I think that by working to proper standards of transparency most scientists would be unlikely to be at risk from accusations of fraud.
sharper00 says:
“The point being made is that Mann is at
worstbest incompetent.”There, fixed it for you. And it still gives Mann the “incompetence” excuse.
sharper00, you are not up to speed on this subject. I suggest that you read The Hockey Stick Illusion, which will open your eyes regarding the corruption endemic within the government/university climate clique. You might also read The Crutape Letters, which showed what goes on behind the scenes, using the crooked scientists’ own incriminating emails.
Michael Mann figures prominently in both books, and after reading them no reasonable person would conclude that Mann is at best incompetent. He is certainly statistically illiterate. But most people would come to the inescapable conclusion that Mann deliberately censored out data that would have brought about exactly the opposite conclusion that MBH98/99 reached. It is being generous to a fault to allow the ‘incompetence’ defense as one possible explanation of Mann’s claim of an unvarying temperature for almost a thousand years, until the industrial revolution. As if.
In order to get a taste of those two books, I suggest you read this short exposé by A.W. Montford [the author of The Hockey Stick Illusion], then report back if you care to defend the actions of the ethically-deficient principals. It is an easy read, only a few pages long.
You might also read this explanation of the UN/IPCC’s shenanigans, and its deliberate misuse of GCMs. It was written a dozen years ago – and the IPCC’s propaganda has gotten much more blatant since then.
As a tie-in with today’s Hal Lewis resignation article, you would better understand what is happening if you read this paper by Prof Richard Lindzen, who knows as well as anyone in the world how these games are played behind the scenes. And of course Hal Lewis’ letter of resignation from the APS is required reading.
When you’ve finished with these, I double dog dare you to come back and try to explain to us why any rational person would believe that the present day mainstream climate science clique, in cahoots with the IPCC, is not thoroughly corrupt.
In addition to the pointers here, reading the WUWT archives will also help you get up to speed on the problem of money corrupting science. And in large part, it is our own money being used to fund the ongoing climate fraud.
In the Kforestcats of the night.
===========
I have to say that seeing this gives me a certain frisson:
http://content.usatoday.com/communities/sciencefair/post/2010/10/wegman-plagiarism-investigation-/1
My, didn’t the Virginia AG cite Wegman six times in his Appendix B? Hmm…
Now, this in no way denigrates his finding that the error (not fraud) that Mann made in his initial analysis technique was wrong (and it was, as even Mann admitted in the Climategate emails http://www.eastangliaemails.com/emails.php?eid=591&filename=1132094873.txt). The important point is, as shown in Wahl and Ammann (2007), that it didn’t make any difference to the conclusions. It does however speak to the level of overall scholarship in the report.
Put it on the front page, Anthony…
schapar00:
WTF? Are you real, or what? Robot? Spam? Troll? You evidently have no knowledge about the details of this issue, but you keep posting your ?? point?? We need some FACTS from you in order to continue the ??discussion??
@jae
“WTF? Are you real, or what? Robot? Spam? Troll? “
How wonderful for you that everyone who disagrees with you has something “wrong” with them.
“You evidently have no knowledge about the details of this issue, but you keep posting your ?? point?? “
I keep posting the facts of the issue (which is the reasoning Cuccinelli has given) in response to people forming conclusions not based on the facts of the issue. The people claiming to have facts beyond those that are known are those who claim there’s some secret information in Cuccinelli’s possession which has yet to even allude to.
“We need some FACTS from you in order to continue the ??discussion??”
Well actually what we need is to agree on the facts that are already available not new ones. You can see a multitude of errors in the comments on this and the other discussions some of which Steven Mosher has attempted to correct, for which you labelled him a “post normal scientist”.
00:
“I keep posting the facts of the issue (which is the reasoning Cuccinelli has given) in response to people forming conclusions not based on the facts of the issue. The people claiming to have facts beyond those that are known are those who claim there’s some secret information in Cuccinelli’s possession which has yet to even allude to.”
Sorry to get so worked up. My point is that ANYONE familiar with this specific issue and who is not biased and who is not a “climate scientist,” (dependent on grants) and who is not a protected academic (or one who is hoping for tenure), and who IS actually a real impartial scientist—HAS to be simply outraged about the whitewashing and dishonesty that has ocurred in “paleoclimatology.” We need a REAL investigation about what has been going on. “Climategate” is a very big deal, bro.
“Go with the legal process to see which prevails. No Problem.”
Well again this is not abstract problem. This is legal action specifically targeting Mann. If this is allowable then every scientist publishing a paper has to decide if they potentially want to “go with the legal process” investigating them for fraud possibly years later.
Apart from the State’s right to oversee/audit the work it funds, who said that this is an abstract problem? No, there are very good reasons to target Mann, and no good reasons why publically funded scientists, especially those who are working on science which will significantly impact the Public, shouldn’t be very worried about avoiding doing fraudulent science by proceeding according to the ethics and process of the Scientific Method, and should therefore accept the possibility that they might be targeted based upon the specific facts surrounding their work, just as Mann has been.
From what I’ve seen of Mann’s practice of “science”, I wouldn’t trust him to make change in a convenience store.
.
Steven Mosher:
“Fishing expedition”
Granted that the State has the right to audit or review the “work” of science it funds, it helps to then “fish” where the fish seem to be – in this case that would be James Mann, whose trustworthiness is, imo, nil, and that is a very important consideration, for me at least.
In the case of Climate Science, obstruction of an FOI request has also been a fairly reliable “fish finder”.
Cuccinelli might be stopped via the legal process itself, or if not maybe he’ll find nothing. But, me, at this point I’d still be going for it full bore – noting your misgivings. We’ll see!
Kforestcat says:
October 8, 2010 at 4:53 pm – discussion of management of grants etc –
Many of us who might be foreign or from other states, would be interested to know whether a grant provided for a specified purpose is regarded as a candidate for a fraud investigation if it is applied without permission to another study, by the grantee.
How much attention do you have to give, in your work, to the possibility of wrongful application of funding? Does it sometimes require a scientist to identify a wrong allocation?
This is not a trick question; it merely arises from a desire to know.
“JPeden says:
October 10, 2010 at 12:41 am”
correction: Michael Mann, of course, not “James Mann”.
Tom Fuller says:
October 6, 2010 at 11:40 pm
No, the most obvious difference arises when academics (unlike journalists et al) are compensated by public funds doled out by others paid by public funds. The State is charged with a fiduciary responsibility to assure public monies are neither obtained nor expended based on fraudulent representations of established fact as the basis for monetary solicitations.
There is no more reason for a special “establishment” relationship to exist between Academia and State than between Church and State. While unbending dogma of religion is dangerous, unbending dogma of academia may be even more so owing to its thin veneer of perceived “objectivity”. How reality differs appears in a recent published comment by S. Budiansky describing his direct experience with the academic breed:
Academic freedom is not a right of citizenship acknowledged either by the people at large nor by their respective constitutions. It is solely a privilege created by academics to govern as lords of their own domain at public expense. It would be absurd to allow them the further privilege to surround themselves with a moat of immunity to any intrusion upon their cozy operations by officials of the state, who are also paid by the people to perform that very duty.
If abuse of the public trust and public funds to falsely influence public policy are afoot, perhaps a “chilling effect” on perceived academic license to steal should be welcomed as a very good thing.
Montgomery, that was a wonderful statement! What say you, now, Fuller?
With all respect to Anthony’s cherry-picked opinion by Patterson, I think Cuccinelli goes too far. This thing is turning into some layer’s bonanza, while the grants in dispute are now only for a single study (some $200,000 in grant money).
I’m sure Cuccinelli has spent more of Virginia’s tax dollars than that on the CID filing and court case itself so far. If not him, then surely the University and their lawyers.
[mod: curious to be worrying about VA’s tax dollars at this point when austerity is hardly a current government policy…]
If money is not the issue as [mod] asserts, then this would invalidate Patterson’s second paragraph, and the officially stated reasons for Cuccinelli’s inquiry.
In that case, one may wonder what Cuccinelli’s real intentions of filing a subpoena, and also why he did not file a similar subpoena on Wegman, who after all, is under internal investigation for pagiarism in the Wegman report. Not to mention that a 250 page report has surfaced that seriously exposes political motivations underlying the Wegman committee and it’s use of tax payers funding.